SZHWD v Minister for Immigration and Citizenship

The Tribunal's Decision 9 The Tribunal accepted the appellant operated an electronics store and later opened a stationery shop near the Catholic school where his wife taught. However, the Tribunal did not accept the appellant closed his electronics shop because of problems he was having with the RSS or Bajrang Dal. The Tribunal found the appellant's evidence as to why the RSS or Bajrang Dal were threatening him to be inconsistent. The Tribunal did not accept the electronics shop was damaged in 2002, particularly as the claim was first raised at the hearing before the Tribunal. The Tribunal also did not accept the appellant received threatening phone calls in 2000 due to his wife's employment because she had worked at the school since 1994, yet only started receiving threats in 2000. The Tribunal found inconsistencies between the appellants' evidence in relation to who received the threatening telephone calls. 10 The Tribunal did not accept the appellant's home was damaged because this claim was also not made before the hearing. The appellant's wife's evidence did not indicate the house had ever been damaged. The Tribunal did not accept the RSS and Bajrang Dal came to the appellant's shop, argued with him or fired some shots because the appellant's evidence at the hearing did not support that claim. The Tribunal also did not accept that the appellant was attacked by four people with an iron rod whilst walking on the road because, again, this claim was raised by the appellant at the hearing for the first time and the appellant's wife's evidence did not support such a claim. 11 As the Tribunal did not accept the appellant had experienced problems with the RSS and Bajrang Dal, it did not accept the appellant reported the incidents to police and therefore did not accept he experienced the problems with the police about which he complained, such as having been detained, as he claimed. Furthermore, the Tribunal noted that the evidence the appellant provided regarding the protection sought from the police was inconsistent. 12 The Tribunal placed no weight on the appellant's brother's evidence because his evidence was only that which had been told to him by the appellant. 13 The Tribunal found the appellant did not face a real chance of persecution from the RSS or Bajrang Dal for reason of his Sikh ethnicity, his operation of businesses in predominantly Hindu areas or his wife's employment at a Catholic school. The Tribunal stated that no specific Convention claims were made by or on behalf of the appellant wife and the fate of her application depended on the outcome of the appellant's application. As the appellant could not be granted a visa, the appellant wife was also ineligible.

Application in the Federal Magistrates Court 14 On 16 December 2005 the appellants applied for judicial review of the Tribunal's decision in the Federal Magistrates Court asserting that the Tribunal exceeded its jurisdiction, erred in law by failing to ascertain the reasons for the appellant's persecution and failed to give the appellants the "benefit of the doubt". 15 An amended application was filed on 29 May 2007, which raised two new grounds: the Tribunal "constructively" erred in its application as to what amounted to serious harm under s 91R(2) of the Migration Act 1958 (Cth) (the Act) (for which the appellant provided various particulars which indicated there was serious harm); and breach of the "common law Rules of Natural Justice in that it failed to comply with procedural fairness" when the Tribunal dismissed the application on the basis of lack of credibility due to internal inconsistencies between evidence. 16 At the hearing before the Federal Magistrate, the appellant sought an adjournment of the hearing to enable him to consult with a barrister. The Federal Magistrate considered the adjournment request but held there was no explanation why the appellant had not consulted a barrister earlier and that, in any event, the appellant's case lacked merit and refused the adjournment. 17 The Federal Magistrate considered both the appellants' original and amended applications for judicial review. His Honour found that as the Tribunal did not find the appellant suffered any harm at all, it made any assessment of whether the harm claimed could constitute "serious harm" for the purposes of s 91R of the Act irrelevant. His Honour noted many of the particulars in support of the ground sought merits review. 18 In relation to the second ground raised in the amended application, the Federal Magistrate noted that s 422B of the Act applied to exclude the common law rule of natural justice. His Honour found that, in any event, the Tribunal had complied with the procedural fairness obligations in ss 424A and 425 of the Act, and that there was no error in the Tribunal's approach. His Honour noted that the appellants were provided with a letter pursuant to s 424A(1) which identified a number of internal inconsistencies in the appellant's own evidence and inconsistencies between his evidence and that of his wife. He also observed that the appellant's adviser had provided a response. 19 Because they were unrepresented, the Federal Magistrate considered the appellants' original application. He found that grounds 1 and 2 sought to re-agitate the merits of the decision and that ground 3 sought to take issue with the Tribunal's assessment of the appellant's credibility. The Federal Magistrate held that the grounds did not raise any jurisdictional error. 20 Finally, his Honour found no jurisdictional error in relation to the appellant wife's application because (at [29] to [30] and [35]): 29. The Tribunal rejected the applicant wife's application on the basis that not having put forward any separate claims of her own, her application was dependent on the outcome of her husband's application. In relation to the applicant, the Tribunal clearly put to him both at the hearing but also by way of its letter of 20 October 2005, that there were inconsistencies between his version of events and his wife's recollection of events, and he was given the opportunity to address these inconsistencies by way of a written response. I note that the adviser provided such a response (CB 126). This ground as particularised also does not succeed. 30. As set out above the applicant wife's application for a protection visa was dependent on the substance of her husband's claims. (See the relationship between s36(2)(a) of the Act and s.32(2)(b) of the Act and its applicant to the relevant circumstances of this matter.) … 35. In all, the Tribunal did not accept the applicant's claims. The rejection of these claims, that is, the rejection of the credibility of these claims was unambiguous. The findings of fact made by the Tribunal in this regard were consistent with what was described by McHugh J in Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 168 ALR 407 (at [67]) as a matter for the Tribunal as the "decision-maker par excellence." The applicant wife's application depended on the outcome of the applicant's claims. Having failed to reach the requisite level of satisfaction that the applicant was a person to whom Australia had protection obligations, it followed that the applicant wife's application could not satisfy the relevant statutory requirements as they applied to her. While the applicant wife was certainly the spouse of the applicant she was a member of the family unit. The applicant's failure to satisfy the Tribunal that he met the criterion set out in s.36(2)(a) of the Act meant that her application also failed. 21 His Honour consequently found the decision of the Tribunal was a privative clause decision and dismissed the application.

On Appeal 22 The appellants' notice of appeal was filed in this Court on 17 October 2007 and raises three grounds. The first ground challenges the Tribunal's findings as to relocation. The second ground challenges the refusal by the learned Federal Magistrate to grant the adjournment application. It is claimed that in that regard the Federal Magistrate "made jurisdictional error". The third and final ground asserts that the Federal Magistrate erred in finding the Tribunal complied with s 424A of the Act "in relation to the separate information of the appellant wife and the appellant husband."

Appellants' Submissions 23 In support of the first ground of appeal, the appellants submit that not only should the Tribunal ought to have considered the issue of relocation, but that in deciding whether or not the applicant is a refugee, an assessment must be made as to whether or not the applicant can effectively relocate to another part of his or her country and receive protection there. The appellants further submit that the Tribunal failed to address the reasonableness of relocation. The appellants contend that the Tribunal failed to look at whether they could have avoided the alleged harm by relocating to another area. 24 With respect to the second ground of appeal, the appellants contend that as their original representative did not have "the appropriate right of appearance and representation" that they should have been granted the requested adjournment. They contend that this refusal resulted in them being denied procedural fairness. The appellants rely on SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 to contend "that it is appropriate for solicitors to attend to legal matters when relied upon to do so." 25 Finally, with respect to the third ground of appeal, the appellants submit that the Tribunal made its decision without having sent a letter pursuant to s 424A of the Act, in contravention of that section. The appellants rely on SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 and SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 per Allsop J at [225].

First Respondent's Submissions 26 The first respondent contends that leave is required for the appellants to raise the first ground of appeal: NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51 at [166]. He further contends that, in any event, as the Tribunal made no relocation finding, no issue arises in connection with whether the Tribunal assessed the issue of relocation properly. 27 With respect to the second ground of appeal, the first respondent submits that the decision to refuse the adjournment application by the Federal Magistrate was made in the exercise of his discretion as trial judge. It was contended that the decision was open to the Federal Magistrate. 28 In relation to the third ground of appeal, the first respondent submits that there was no error in the Federal Magistrate's decision, as the appellants were provided with a s 424A letter. The first respondent submits that, in any case, on a joint application such as this one, information provided by one joint applicant need not be provided to other joint applicants: Applicant M47/2004 v Minister for Immigration and Multicultural Affairs [2006] FCA 176; SZHTL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1052.

Analysis 29 The first respondent is correct in contending the first ground of appeal was not raised before the Federal Magistrate and, therefore, the appellants require leave: NAJT 147 FCR 51. No explanation has been given for the failure to raise this matter in the Federal Magistrates Court. The appellant, of course, was unrepresented both before the Federal Magistrates Court and this Court. In order to determine whether leave should be granted to the appellants to raise this ground on appeal, I shall shortly consider the merits of the ground. As the first respondent asserts, in order to attack any finding of the Tribunal on issues of relocation, there must first be a finding. There was no finding because the question of relocation never arose. It would only have arisen if the appellant had made out his primary contention that the applicant had a well-founded fear of persecution if he were to return to India. I accept, as the first respondent contends, that because the Tribunal made no relocation finding this ground raises no relevant issues on appeal. Leave must be refused. 30 In relation to the second ground of appeal, although it is desirable that applicants in these cases be represented where possible, it is not a matter of right. The Federal Magistrate refused the adjournment application on the grounds that no satisfactory explanation was provided for the late request for the adjournment and that the lack of merits in the case did not warrant any further delay in the matter. No error has been shown in the Federal Magistrate's exercise of discretion. For that reason, this ground also fails. The decision of SZFDE [2007] HCA 35 is not relevant to this ground. 31 Finally, in relation to ground 3, I accept that although it is unnecessary for the evidence of one appellant to be put to another when two appellants submit a joint application for review to the Tribunal (ss 424A(1) and (3)(b); Applicant M47/2004 [2006] FCA 176; SZHTL [2006] FCA 1052), that in any event, the Tribunal put any inconsistencies between the appellants' evidence that it relied upon to the appellants in the letter it sent to them on 20 October 2005. I have identified the matters contained in the letter earlier in these reasons. This third ground of appeal also fails.

Conclusion 32 There is no demonstrated error in the learned Federal Magistrate's decision. Accordingly, the appeal must be dismissed and the appellant must pay the first respondent's costs. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.

Associate: Dated: 6 March 2008 Counsel for the Appellants: Appellant appeared in person